Waverley Council v Bobolas (No 2) [2015] NSWLEC 66

Waverley Council v Bobolas (No 2) [2015] NSWLEC 66

The respondents' intended appeal against refusal of legal aid was not bona fide and was a deliberate device to delay the proceedings, because the respondents applied for legal aid only on the day before the hearing, had not lodged an appeal by the morning of the resumed hearing, advanced no grounds of appeal, omitted the refusal letter from their faxed material, did not appear to explain their position, and had long known of the proceedings. On the uncontested substantive evidence, the premises contained increasing waste posing health and fire risks, vegetation affected the house, and the garage was dilapidated and dangerous; the respondents had failed to comply with Council orders. The...

Jurisdiction
Australia
Judgment Date
24 April 2015
Procedural Posture
Class 4 Proceedings Seeking Declarations and Orders Concerning Waste Kept on Premises and Non Compliance With Council Orders / Principal Judgment After Hearing of Respondents' Notice of Motion for Adjournment and Applicant's Substantive Summons
Outcome
Respondents' Notice of Motion dismissed; declaration and orders sought by the applicant made; respondents ordered to pay the applicant's costs.
Legal Topics
['civil Enforcement' 'injunctions and Declarations' 'council Orders Concerning Waste and Unsafe Premises' 'adjournment Pending Legal Aid Review Committee Appeal' 'proceeding in Absence of Respondents' 'costs']
['environmental Planning and Local Government' 'practice and Procedure'] ['civil Enforcement' 'injunctions and Declarations' 'council Orders Concerning Waste and Unsafe Premises' 'adjournment Pending Legal Aid Review Committee Appeal' 'proceeding in Absence of Respondents' 'costs']

Case Brief

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Procedural Posture

Class 4 Proceedings Seeking Declarations and Orders Concerning Waste Kept on Premises and Non Compliance With Council Orders / Principal Judgment After Hearing of Respondents' Notice of Motion for Adjournment and Applicant's Substantive Summons

Legal Issues

  1. 1 ["Whether the respondents' application for an adjournment under s 57 of the Legal Aid Commission Act 1979 should be granted pending an intended appeal from refusal of legal aid." 'Whether the respondents had failed to comply with Council orders concerning demolition of a dilapidated garage, safe and healthy condition of premises, removal of waste, and refraining from keeping waste.' 'Whether the Court should make declarations and orders permitting Council to enter the premises, carry out works, remove waste and recover costs and expenses.']

Ratio Decidendi

The respondents' intended appeal against refusal of legal aid was not bona fide and was a deliberate device to delay the proceedings, because the respondents applied for legal aid only on the day before the hearing, had not lodged an appeal by the morning of the resumed hearing, advanced no grounds of appeal, omitted the refusal letter from their faxed material, did not appear to explain their position, and had long known of the proceedings. On the uncontested substantive evidence, the premises contained increasing waste posing health and fire risks, vegetation affected the house, and the garage was dilapidated and dangerous; the respondents had failed to comply with Council orders. The...

Court Disposition

Respondents' Notice of Motion dismissed; declaration and orders sought by the applicant made; respondents ordered to pay the applicant's costs.

Orders

  • ['The Notice of Motion dated 22 April 2015, and filed by the respondents by email on 23 April 2015, is dismissed.' 'The Court adopts the "definitions of terms" in par 1 of the summons, dated 5 December 2014, and makes the declaration sought in prayer 2 of it.' 'The Court makes the orders sought by the applicant in...